Issue link: https://maltatoday.uberflip.com/i/1164933
12.09.19 13 OPINION Aisling McMahon Alena Buyx Barbara Prainsack Aisling McMahon is Assistant Professor in Law at the National University of Ireland Maynooth; Alena Buyx is Professor in Ethics at the Technical University of Munich; and Barbara Prainsack is Professor of Comparative Policy Analysis at Universität Wien M ustafa loves good coffee. In his free time, he oen browses high-end coffee machines that he cannot currently afford but is saving for. One day, travelling to a friend's wed- ding abroad, he gets to sit next to another friend on the plane. When Mustafa complains about how much he paid for his ticket, it turns out that his friend paid less than half of what he paid, even though they booked around the same time. He looks into possible reasons for this and concludes that it must be related to his browsing of expensive coffee ma- chines and equipment. He is very angry about this and complains to the airline, who send him a lukewarm apology that refers to personalised pricing models. Mustafa feels that this is unfair but does not challenge it. Pursuing it any further would cost him time and money. is story – which is hypothetical, but can and does occur – demonstrates the potential for people to be harmed by data use in the current "big data" era. Big data analytics involves using large amounts of data from many sources which are linked and analysed to find patterns that help to predict human be- haviour. Such analysis, even when per- fectly legal, can harm people. Mustafa, for example, has likely been affected by personalised pricing prac- tices whereby his search for high-end coffee machines has been used to make certain assumptions about his willing- ness to pay or buying power. is in turn may have led to his higher priced airfare. While this has not resulted in serious harm in Mustafa's case, instanc- es of serious emotional and financial harm are, unfortunately, not rare, in- cluding the denial of mortgages for in- dividuals and risks to a person's general credit worthiness based on associations with other individuals. is might hap- pen if an individual shares some similar characteristics to other individuals who have poor repayment histories. Instances of emotional harm can also occur. Imagine a couple who find out they are expecting a much wanted child, but suffer a miscarriage at five months. e couple may find they continue to receive advertisements from shops spe- cialising in infant products months lat- er, celebrating which should have been key "milestones", causing distress. is is another hypothetical but entirely pos- sible scenario. The law – or lack of it In many of these cases, because the harmful practice may not have broken any laws, those who were harmed by data use have limited or no legal op- tions open to them. What happened to Mustafa, for example, was perfectly le- gal, as there are no current laws forbid- ding personalised pricing as such. Our current legal systems do not adequately protect people from the harms emerg- ing from big data. is is because it is very difficult to trace how our data is linked and used. Even if the airline company had done something unlawful, such as broken data protection laws, it would be near impossible for Mustafa to find out. Peo- ple who feel they have been harmed by data use may struggle to show how their data has been used to cause this harm, which data was involved or which data controller used it. And so they may lack the proof they'd need to get a legal rem- edy. Furthermore, even if they show how something someone did with their data harmed them, that particular use of customer information, to adjust pricing for example, may not be unlawful. Equally, the harm may be caused not by one's own data but by the use of oth- er people's data (third party data). For example, in Mustafa's case it might be that other individuals who were also interested in expensive coffee machines had very high incomes, or bought ex- pensive items. is may have been used to suggest that Mustafa also fell into this category, which may have resulted in higher prices for him for other prod- ucts. An individual harmed through the use of third party data will often not have remedies under current data pro- tection laws. A new system To help address such issues, we argue that we need to accept that some risks from data usage are not preventable. Instead of focusing solely on trying to minimise or avoid such risks, we also need to find ways to better support people who suffer harms from data use, for example by actively monitoring and responding to harms caused by data use, including legal uses of data. We think that as part of this system, a new type of institution should be set up. We call them harm mitigation bod- ies. ese would be set up at a nation- al level, and people who felt they were harmed by data use, but did not qualify for legal remedies, could go to them to report the harm they think arose from data use. Unlike traditional remedies, harm mitigation bodies could provide support even in cases where no laws were broken. ey would be easy for people to use, and flexible, so that they could support people where and how they most need it, giving individuals more power and strengthening collective responsibility for data use. ese proposed bodies would collect information on what types of harm oc- cur: currently there are no national or international bodies that collect infor- mation on data harms systematically. ey would also feedback information to policy makers and data users to help improve how things are done. And in cases where people suffer financial harms but do not have access to legal help, they might provide financial sup- port as well. Big data analytics is rightly lauded for the many new opportunities that it of- fers. But it will be inevitable that some people will be harmed. As a society, we need to face this truth, and provide better assistance to those who suffer harms, so that nobody who bears the costs for these new practices is left alone. How big data can affect your bank account – and life